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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

27 FLRA No. 40
22nd COMBAT SUPPORT GROUP
(SAC), MARCH AIR FORCE BASE
CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, INTERDEPARTMENTAL LOCAL
3854, AFL-CIO
Charging Party
Case No. 8-CA-60091
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the General
Counsel. The Respondent filed an opposition to the exceptions. The
issue is whether the Respondent violated section 7116(a)(1) and (2) of
the Federal Service Labor-Management Relations Statute (the Statute) by
appraising an employee's performance significantly lower than her
previous appraisals because she sought Union assistance from the
Charging Party (the Union) and filed a grievance. We conclude that the
Respondent violated the Statute as alleged.
II. Background
The employee, Elsa Kleinfieldt, was employed by the Respondent as
supply clerk for two years before being promoted to her current
position. During that time, she received a number of performance
awards. In September 1984, she was promoted to the position of supply
technician in the Maintenance Section. On January 31, 1985,
Kleinfieldt's supervisor appraised her performance as exceeding all
standards and as outstanding in all appraisal factors. The overall
rating was superior.
As a result of a reorganization in May-June 1985, Kleinfieldt's
position was transferred to the Engine Management Branch. Kleinfieldt's
duties and place of work remained the same. Her new supervisor was
Lieutenant Colonel Damiano, Assistant Deputy Commander for Maintenance.
In August 1985, Damiano appraised Kleinfieldt's performance for the
period from September 30, 1984 to June 30, 1985, as "9" or "Outstanding"
in all categories.
In September 1985, Kleinfieldt was informed that Master Sergeant
Bowers would be Chief of the Engine Management Branch. On October 16,
Colonel Spaulding, Colonel Damiano's scheduled replacement, met with
Kleinfieldt and Bowers to discuss work arrangements.
On November 12, Kleinfieldt met twice with management. Both meetings
concerned Kleinfieldt's supervision. At the second meeting, Damiano
emphasized that Bowers was Kleinfieldt's supervisor. Kleinfieldt
disagreed. She argued that based on her position description she did
not work for Bowers but, rather, for Damiano or whoever was Assistant
Deputy Commander for Maintenance. During the meeting, Damiano told
Kleinfieldt he was very pleased with her work. Kleinfieldt maintained
that she would not accept Bowers as her supervisor and that if the
matter was not resolved to her satisfaction she might file a grievance.
Kleinfieldt subsequently sought assistance from the Union in the
matter. A meeting arranged by the Union president was held on November
22, which was attended by Kleinfieldt, her Union representative and
Damiano. The Union representative requested that Bowers be removed as
Kleinfieldt's supervisor. Damiano stated that Bowers was the supervisor
as a result of the reorganization and that arrangement would not be
changed. Damiano further stated that while he had been straightforward
with Kleinfieldt, she had put matters in writing and had brought the
Union into the dispute.
On December 6, Damiano issued a "close out" appraisal of
Kleinfieldt's performance for the period from July 1, 1985 to December
6, 1985. A "close out" appraisal is accomplished by a departing
supervisor to be used as an informational tool by a new supervisor in
preparing an annual performance appraisal. Damiano rated Kleinfieldt's
performance as "5" or "fully successful" for each appraisal category.
III. Administrative Law Judge's Decision
The Judge found that the unfair labor practice charge was not
precluded by an earlier filed grievance under section 7116(d) of the
Statute. He also found no merit to the Respondent's contention that
because the performance appraisal was "informal," it could not be the
basis for an unfair labor practice finding.
However, the Judge declined to find that the lower performance
appraisal was based on Kleinfieldt's filing a grievance or enlisting the
aid of the Union. Rather, he concluded that the General Counsel had not
established a prima facie case of discrimination, and recommended that
the complaint be dismissed.
In reaching this conclusion, the Judge noted that despite
Kleinfieldt's excellent prior record, and her skills apparently
remaining the same, and despite the remarks by Damiano concerning the
Union and the grievance, as well as the timing involved, he considered
that Kleinfieldt's refusal to abide by the selection of Bowers as her
supervisor together with the breakdown in communication "could well
color the appraisal which was made by Damiano in December." The Judge
also found:
Although in respect to the performance factors, there was no
lowering of the employee's skill, Damiano testified the lack of
cooperation and friction induced him to lower her ratings to "5"
and consider her as "Fully Satisfactory" rather than
"Outstanding." While other rating officials might not have changed
Kleinfieldt's appraisal based on her conduct, Damiano's rating was
a judgment call. Unless anti-union animus can be shown, or an
inference of retaliation is properly drawn from the filing of a
grievance, the record of Kleinfieldt's behavior during the period
preceeding the December 6 appraisal does not justify labeling
Damiano's judgment as unreasonable or pretextuous (sic) in nature.
The Judge noted there was no evidence to indicate management's
hostility to the Union or the filing of grievances, and declined to draw
such an inference:
While it may be argued that a refusal to accept Bowers as her
supervisor and a lack of cooperation does not square with a lower
appraisal of performance factors, such a conclusion calls for
substituting one's judgment for that of the rating official.
IV. Positions of the Parties
The General Counsel argues that it had been established that
Kleinfieldt was engaged in protected activity and that her protected
activity was a motivating factor in the Respondent's conduct. Thus, the
General Counsel argued that the Respondent's attitude towards
Kleinfieldt changed when she went to the Union for help. In addition to
arguing that a prima facie case was established, the General Counsel
argues that the reasons given by the Respondent were pretextual.
The Respondent's brief supports the findings of the Judge.
V. Analysis and Conclusions
Noting particularly the absence of exceptions, we adopt the Judge's
conclusions that the unfair labor practice proceeding is not barred by
section 7116(d) and that the performance appraisal at issue had an
impact on Kleinfieldt's tenure and employment within the meaning of
section 7116(a)(2).
The central issue in this case is whether the lowering of
Kleinfieldt's performance appraisal, in all categories, shortly after
filing a grievance, was a result of her engaging in the protected
activity of seeking the Union's help and filing a grievance, or whether
it resulted from her lack of cooperation and inability to get along with
her supervisors and coworkers as asserted by the Respondent. Contrary
to the Judge, we conclude that the alleged reasons for the lowered
appraisal were pretextual.
To establish a prima facie case of discrimination in violation of
section 7116(a)(2), it must be shown that the employee engaged in
protected activity and that such activity was a motivating factor in the
Respondent's treatment of the employee in connection with hiring, tenure
promotion, or other conditions of employment. The Judge in this case
declined to draw an inference that the protected activity was a
motivating factor in the treatment complained of by Kleinfieldt. We
find not only that such an inference is proper, but on careful
consideration we conclude that the protected activity alone was the
motivating factor, because the asserted performance-related reasons have
not been established.
With a background of performance awards and commendations going back
to 1982, Kleinfieldt was promoted to her current position in September
1984. After a reorganization in May-June 1985, her new supervisor,
Damiano, rated her performance as "9" or "Outstanding" in all
performance categories for the period from September 30, 1984 to June
30, 1985. In October 1985, Kleinfieldt was told that Bowers would be
her new supervisor. Kleinfieldt's problems with being supervised by
Bowers were discussed at two meetings on November 12. At the second
meeting, Kleinfieldt mentioned that she might file a grievance over the
matter of her supervision. Shortly thereafter, Kleinfieldt went to the
Union president who arranged a meeting on November 22, including
Kleinfieldt, her Union representative and Damiano. A document entitled
"grievance" was produced, which, among other things, requested that
Bowers be removed as Kleinfieldt's supervisor. Damiano stated that
while he had been straightforward with Kleinfieldt, she had put things
in writing against him, had brought the Union into the matter, and had
filed a grievance.
Two weeks later, on December 6, Damiano gave Kleinfieldt the
appraisal for the period from July 1 to December 6, 1985, which is the
basis of the complaint.
Damiano testified without contradiction that Kleinfieldt's work
performance in November was "great," and that she was a very good
worker. Further, with respect to the performance elements listed in her
appraisal, the Judge found that Damiano's testimony "reflects that her
level of performance remained the same between August and December."
In view of Kleinfieldt's prior excellent record, her admittedly
continued high level of performance, Damiano's remarks about the filing
of the grievance and calling in the Union and the timing shortly
thereafter of the lowered evaluation, we are persuaded that the
evaluation was a result of Kleinfieldt's calling upon the Union and
filing the grievance. Further, on its face, the lowered evaluation is
inconsistent with the asserted performance-related reasons. This is not
a matter of substituting our judgment for that of the rating official,
as suggested by the Judge. Kleinfieldt was given a "5" or "Fully
Satisfactory" rating in every one of nine categories after receiving a
"9" or "Outstanding" 5 months before, and for a time during which the
rating official, as found by the Judge, said her performance remained
the same as at the end of the prior rating period. The only reason
given for the lower ratings was that Kleinfieldt's failure to cooperate
and accept supervision warranted only a "Fully Successful" rating.
There has been no showing that any of the factors, let alone all of
them, could have been adversely affected by the cited failure to
cooperate. /1/ In fact, performance of at least some of the factors
apparently could not have been affected by the problems alleged to be
the cause of a lowered rating.
In view of the foregoing, we find that the General Counsel
established that Kleinfieldt engaged in protected activity, that she
received a lowered performance appraisal soon after the Respondent knew
of that activity and made remarks about it just after telling her what a
good worker she was, and that the asserted performance-related reasons
for the lowered appraisal were pretextual. Therefore, we conclude that
the Resondent violated section 7116(a)(1) and (2) of the Statute, as
alleged. /2/
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the 22nd Combat Support Group (SAC),
March Air Force Base, California, shall:
Cease and desist from:
(a) Discriminating against Elsa Kleinfieldt by taking into
consideration in appraising her performance her exercise of her
protected rights of seeking assistance from American Federation of
Government Employees, Interdepartmental Local 3854, AFL-CIO, the
exclusive representative of its employees, and filing a grievance
under the negotiated grievance procedure.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the December 6, 1985 appraisal and reappraise Elsa
Kleinfieldt without taking into considertion her exercise of
protected rights.
(b) Post at its facility copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the Commanding
Officer, 22nd Combat Support Group (SAC), March Air Force Base,
and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that such
notices are not altered, defaced, or covered by any other
material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal
Labor Relations Authority, Los Angeles, California, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/2/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discriminate against Elsa Kleinfieldt by taking into
consideration in appraising her performance her exercise of her
protected rights of seeking assistance from American Federation of
Government Employees, Interdepartmental Local 3854, AFL-CIO, the
exclusive representative of our employees, and filing a grievance under
the negotiated grievance procedure.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL rescind the December 6, 1985 appraisal and reappraise Elsa
Kleinfieldt without taking into consideration her exercise of protected
rights.
... (Activity)
Dated: ... By: ... (Signature) ... (Title)
This notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Federal Labor Relations Authority, Region VIII, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California,
90071 and whose telephone number is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 8-CA-60091
22ND COMBAT SUPPORT GROUP (SAC), MARCH
AIR FORCE BASE, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
INTERDEPARTMENTAL LOCAL 3854, AFL-CIO
Charging Party
Lt. Colonel Wade B. Morrison
For the Respondent
Jonathan S. Levine, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on February 27,
1986, by the Acting Regional Director for the Federal Labor Relations
Authority, Los Angeles, California, a hearing was held before the
undersigned at Los Angeles, California on May 15, 1986.
This case arose under the Federal Service Labor-Management Relations
Statute (herein called the Statute). It is based on a charge filed on
December 18, 1985 by American Federation of Government Employees,
Interdepartmental Local 3854, AFL-CIO (herein called the Union) against
22nd Combat Support Group (SAC), March Air Force Base, California
(herein called Respondent).
The Complaint alleged, in substance, that on or about December 6,
1985, Respondent issued employee Elsa Kleinfieldt a lower Civilian
Performance and Promotion Appraisal for the period, July 1, 1985 -
December 6, 1985 because she sought the assistance of the Union and/or
because she filed a grievance -- all in violation of Section 7116(a)(1)
and (2) of the Statute.
Respondent's Answer, dated March 6, 1986, denied the essential
allegations of the complaint, as aforesaid, as well as the commission of
any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Briefs were filed with the undersigned which
have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been the exclusive
representative of all Respondent's employees paid from appropriated
funds and located at March Air Force Base, California, with specified
exclusions from said unit.
2. At all times since about 1982 the Union and Respondent have been
parties to a collective bargaining agreement covering the employees of
Respondent in the above-described unit.
3. Since 1982 Elsa Kleinfieldt has been employed by Respondent
herein. Prior to September 1984 she was employed as supply clerk in the
Supply Squadron. During this two year period several awards of
distinction were bestowed upon this employee, including the following:
/3/
(a) Special Achievement Award for Superior Performance (April
19, 1982 - September 30, 1982)
(b) Superior Service Award (November 22, 1982)
(c) Quality Step Increase for Sustained High Quality
Performance (May 1, 1984)
(d) Outstanding Performance Award (September 21, 1984)
4. On September 30, 1984 Kleinfieldt was promoted and she became a
Supply Technician in the Maintenance Section. Her function was to serve
as base engineer manager. The duties which she assumed included
maintaining inventory of engines, reporting on them, receipting and
shipping engines coming to or leaving the base, monitoring parts on
order, planning ahead for the needs of new engines, and shipping out
engines not repairable.
5. Master Sergeant Scales supervised Kleinfieldt when she assumed
her new position. Scales was Chief of the Propulsion Branch.
6. A Performance and Promotion Appraisal of Kleinfieldt was made by
Scales on January 31, 1985. The supervisor was under the mistaken
impression that a rating was then due. He rated her as exceeding all
performance standards and outstanding in all appraisal factors. The
overall rating was "Superior." /4/
7. A reorganization was effected in May-June, 1985 /5/ at
Respondent's facility. The position of base engine manager became part
of the Engine Management Branch and was removed from FMS Propulsion
Branch. A change of supervision resulted, and Kleinfieldt was put under
the supervision of Lieutenant Colonel Michael R. Damiano, Assistant
Deputy Commander for Maintenance at March Air Force Base. The job
duties of Kleinfieldt remained the same and her work location continued
to be in the Propulsion Branch.
8. In August, Damiano filled out a Performance Appraisal for
Kleinfieldt covering the period from September 30, 1984 - June 30, 1985.
He rated her a "9" which signifies "Outstanding" in the performance
categories just as she was rated and appraised by Scales, her former
supervisor.
9. In or about September, Scales told Kleinfieldt that Master Sgt.
Janet G. Bowers was going to be made Branch Chief of the Engine
Management Branch. Sometime in late September or early October, Bowers
moved into the same office with Kleinfieldt. Record facts show that on
October 16, Colonel Spaulding, OMS Commander and the scheduled
replacement for Damiano, met with Kleinfieldt and Bowers. As the
individual to be in charge of the Engine Management Branch, Spaulding
explained the new hierarchy and that Kleinfieldt would work under
Bowers. /6/
10. On October 28, Kleinfieldt went on annual leave and remained
away until November 12. She testified that notice was given by her to
Master Sgt. Whitman, who was to replace Scales, and also to Bowers;
that both were rumored to become Chief of the Engine Management Branch,
and since she could not find Damiano, she left a message with the
latter's secretary of her planned leave.
11. On October 29 Damiano telephoned Kleinfieldt at home and
inquired as to her being on unauthorized leave. /7/ The employee
explained that her leave had been coordinated through Scales, Whitman,
Bowers and Staff Sgt. Causer, and that word had been left with Damiano's
secretary. Damiano said he would allow Kleinfieldt to continue her
leave but would hold her responsible for anything that went wrong re
correspondence, suspenses, letters and such items. He affirmed that she
never did anything like this before, never left work behind, and was a
good employee. /8/
12. A meeting was held on November 12, which was attended by
Kleinfieldt, and by Spaulding and Bowers on behalf of management.
Spaulding asked Bowers if he had trouble supervising Kleinfieldt.
Responding to the question, Bowers replied there was a communication
problem; that when he asked her a question, Kleinfieldt just answered
it. Spaulding then inquired of Kleinfieldt whether she had trouble
working for Bowers. /9/ The employee answered by saying she had just
returned from leave, had much work to do, didn't want to comment then re
that matter, and wanted to talk to some people about it. Spaulding
stated he heard a rumor that Kleinfieldt wanted to become Engine
Management Chief and was upset at not getting the position. The
employee said the rumor was not true.
13. Another meeting, called by Damiano, was attended in the
afternoon of November 12. Also in attendance were Spaulding, Bowers and
Kleinfieldt. Damiano opened the meeting by stating it was called to
clear up the issue of Kleinfieldt's supervision; that it should be
understood Bowers was her supervisor and she worked for him.
Kleinfieldt interjected that she did not work for Bowers; that, based
on her position description, she worked for Damiano or whoever is the
Assistant Deputy Commander for Maintenance. Upon being questioned,
Bowers mentioned he had a communication problem with Kleinfieldt. When
the employee was asked if she had difficulty working for Bowers, she
requested a discussion with just Damiano and Spaulding. Whereupon
Bowers left the room.
Kleinfieldt asked Damiano if anything new had come down from
Headquarters SAC and whether he was pleased with her work. Damiano
stated that there was nothing new and that he was very pleased with her
work as indicated in the performance rating given her. Kleinfieldt
inquired why, in view of such satisfaction, he was imposing another
level of supervision over her. He replied that she couldn't do what she
wanted; that he thought she had her heart set on being Branch Chief and
it accounts for her not accepting Bowers as her supervisor. Kleinfieldt
denied this, saying that according to her position description Damiano
was her supervisor; that she would not accept Bowers as her supervisor
and she had seen nothing to indicate to the contrary. Further, she
mentioned that if it didn't stop, she may have to file a grievance.
Damiano retorted Kleinfieldt could do anything she wanted to do, he did
not care.
Kleinfieldt stated she didn't want to file a grievance, but merely
wanted to do her job. She asked to be left alone to do it. Spaulding
asked what type of grievance would the employee file, and he also
inquired whether she would grieve if the sueprvisory issue was cleared.
Kleinfieldt said she would not file in that event.
14. Because of the issue concerning her supervisor, Kleinfieldt went
to the Union for assistance. She talked to the Union President, Tom
Carraway, and he arranged a meeting by calling Damiano. A meeting was
held on November 22, which was attended by Kleinfieldt, her Union
representative Socrates Delianedis, and Damiano. At the outset
Delianedis pulled out a paper which was in the form of a letter
addressed to Damiano from Kleinfieldt. He remarked it was only an
informal letter in order to clarify the issues in the discussion. It
was entitled "Grievance" and recited that the employee was submitting it
based on (a) the assignment to her of an additional supervisor in
violation of Public Law and Air Force Regulations; (b) Damiano's
calling her at home and making threats; (c) violating Kleinfieldt's
privacy by distributing her records to unauthorized persons; (d)
unauthorized persons have had access to a security code for which she
was responsible. In addition to requesting that Bowers be removed as
her supervisor, Kleinfieldt requested that Damiano establish who her
rating official would be, as well as cease and desist from the alleged
conduct outlined in the letter. (G.C. Exhibit 14).
15. During a discussion of the issues at the aforesaid meeting,
Damiano stated that Bowers was Kleinfieldt's supervisor; that it had
been explained to her; that it was in accord with the reorganization;
that he was not able to, nor would he, change her supervision. The
other issues were discussed, and Damiano said he wanted someone else in
the room when it was requested that he stop threatening Kleinfieldt and
calling her at home. Damiano stated he had been straight forward with
the employee; that she had put things in writing; that she had brought
the Union into this, fabricated her time card, and had other devious
purposes in mind.
Damiano summoned Spaulding to the meeting. He told Spaulding of the
allegations by Kleinfieldt, and stated that the employee had filed a
grievance. /10/ The parties discussed the issues re Kleinfieldt's
supervisor and the phone calls to her house. When the employee stated
the issues were not resolved to her satisfaction, Delianedis remarked he
was then filing the grievance on Kleinfieldt's behalf.
16. Upon being called on December 6, 1985 to come and receive some
papers, Kleinfieldt appeared at Damiano's office with Union
representative Delianedis. When they arrived Damiano told the employee
she could not have the Union representative present since the subject
concerned a change of supervision appraisal. Delianedis left the room
and Kleinfieldt met with Damiano and Steven Ortega, Respondent's
Employee Relation Specialist. Damiano then gave the employee a Civilian
Performance and Promotion Appraisal (G.C. Exhibit 19). The appraisal,
which covered the period July 1, 1985 - December 6, 1985, stated the
reason for said appraisal to be: "Change of Reporting Official." /11/
The said appraisal's rating official was Damiano, and Kleinfieldt was
rated a "5" for each of the nine appraisal factors, which signified she
was rated "Fully Successful".
17. Record facts reflect that the December 6 appraisal of
Kleinfieldt is a close out performance appraisal -- an informational
tool to be used by the employee's new supervisor when he prepares her
annual performance appraisal. Thus, Damiano used the close out
appraisal of Kleinfieldt, which Scales made upon his retirement, when he
rated Kleinfieldt in her August appraisal. In rating her as superior,
Damiano also relied upon his own observations.
18. Damiano acknowledged that Kleinfieldt's work performance in
November was "great"; that she was a very good worker. He testified
that the employee, however, showed a lack of cooperation and inability
to get along with her supervisors and coworkers. Damiano insists there
was a change in her ability to solve problems, which was due to an
inability to separate a function which was hers as Base Engine Manager
and hers as a member of the SIMS Branch. Further, Damiano testified
that Bowers and Scales complained about Kleinfieldt's uncooperativeness.
While her skills remained the same, Damiano felt that the employee
should not be rated a "9" for the Appraisal factors ("Outstanding") nor
a "Superior"; that her failure to cooperate and accept supervision
warranted the rating of a "5" for the Appraisal factors ("Fully
Successful") and the same for the overall rating. /12/
As an example of the difficulty he encountered with Kleinfieldt after
her return from vacation, Damiano testified that each time he made an
attempt to make a call he was greeted with a "I'll have to wait", or
"I'll have to come back" -- "I'll have to bring my representative, Mr.
Delianedis with me."
17. Respondent's response to Kleinfieldt's grievance of November 22
was a written denial dated December 6 and handed to her on that date.
18. Another grievance dated December 6, was submitted by Kleinfieldt
pursuant to the negotiated grievance procedure. It alleged that
Damiano, via Bowers, violated Article 32, Section 2 of the bargaining
agreement in that Bowers had been holding up her incoming mail.
19. On the same date, December 6, Kleinfieldt raised her November 22
grievance to Step 2, and submitted it to Colonel David R. Logue. /13/
20. Under date of December 17 Damiano returned to Kleinfieldt her
December 6 grievance in a letter addressed to the employee. Damiano
suggested she talk to her immediate supervisor, pointing out that, under
Article 32, Section 10 of the bargaining agreement, a Step 1 grievance
must first be submitted to the first level supervisor.
21. Another grievance, dated December 12, was presented by the Union
on behalf of Kleinfieldt. It alleged, in substance, that Damiano and
Bowers had violated Article 32, Section 2, and Article 30, Section 5 of
the bargaining agreement by harassing and intimidating Kleinfieldt. The
grievance requested appropriate cessation thereof, restitution to the
employee, and proper notification to employees thereof.
22. Under date of January 13, 1986 Respondent responded to the
grievance, pointing out that Bowers was Kleinfieldt's supervisor; that
Damiano passed on her record to Bowers; and that the rating by Damiano
of Kleinfieldt was a close out report, which was not a rating of record
but was intended to serve only as information for the new supervisor.
/14/
Conclusions
There are three primary issues for determination herein: (1) whether
the submission of the grievance by the Union, on behalf of Kleinfieldt,
on December 12, 1985 bars the instant complaint under Section 7116(d) of
the Statute; (2) whether the fact that the appraisal of Kleinfieldt on
December 6, 1985 constitutes an informal rating, which is merely an
opinion of a supervisor for use by a new supervisor, precludes a finding
that the appraisal may be considered an action in respect to hiring,
tenure, promotion, or other conditions of employment under 7116(a)(|2)
of the Statute; (3) whether the December 6, 1985 appraisal of
Kleinfieldt, which lowered her prior rating, was due to a grievance
filed on her behalf on November 22, 1985 as well as her seeking union
assistance in violation of 7116(a)(2) of the Statute.
(1) In an attempt to avoid duplicity of actions, legislative
enactment in the public sector is set forth to that effect under Section
7116(d) of the Statute. The statutory language in that respect is as
follows:
"Issues which can properly be raised under an appeals procedure
may not be raised as unfair labor practices prohibited under this
Section. Except for matters wherein, under section 7121 (e) and
(f) of this title, an employee has an option of using the
negotiated grievance procedure or an appeals procedure, issues
which can be raised under a grievance procedure may, in the
direction of the aggrieved party, be raised under the grievance
procedure, or as an unfair labor practice under this section, but
not under both procedures.
Respondent takes the position that 7116(d) has been flouted by the
Union's filing of the instant charge on December 18 after having
submitted the grievance on December 12. It contends that the Union is
alleging the same wrong in both instances; that while the words may be
different in the grievance and the charge, the Union is complaining of
the same conduct by management, i.e. the December 6 appraisal of
Kleinfieldt. Thus it insists the issue raised in the grievance cannot
be the subject of the unfair labor practice charge, and accordingly the
latter must be dismissed under 7116(d).
The text of the December 12 grievance recites that Respondent's
officials, Damiano and Bowers, took actions "to harass and intimidate a
bargaining unit employee (Ms. Elsa Kleinfieldt)." The grievance
requested that these officials cease and desist such treatment; that
they make written restitution "to affected bargaining unit employee(s)
within the organization"; and that these officials communicate their
commitment to fair employment practices to unit employees. The unfair
labor practice charge alleged that Respondent took disciplinary action
against a unit employee because the employee used the negotiated
grievance procedure. /15/
Respondent's contention that the issues raised by the December 12
grievance and the unfair labor practice charge are identical is
rejected. An allegation of harassment and intimidation, as set forth in
the December 12 grievance, could be referable to various types of
conduct. The record did not amplify or explain the harassing actions
taken by the two management officials, and there is no evidence to
support the conclusions that it was intended to refer to the lower
appraisal issued to Kleinfieldt. In fact, a grievance filed on December
6 complained that Bowers had been holding up Kleinfieldt's incoming
mail. In addition, the November 22 grievance, which is alleged to be a
basis for Respondent's retaliatory action, dealt with Kleinfieldt's
grieving about (a) the assignment of Bowers to supervise her; (b)
improper distribution of her records and security code; (c) making
threatening telephone calls to her house.
It does not appear to the undersigned that the December 12 grievance
and the unfair labor practice allegations that Respondent gave a lower
appraisal to Kleinfieldt due to her protected activity clearly raise the
same issues. The said grievance is too general in nature, and without
more evidence to indicate that it was intended to, and did, relate to
the December 6 appraisal, it cannot be said that the same issue was
raised in such proceeding. Accordingly, I conclude that the Complaint
herein was not barred by the filing of the grievance on December 12.
See Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 16
FLRA No. 1083; Department of the Air Force, Air Force Logistics
Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 10 FLRA
88.
(2) It is also urged by Respondent that no "act" of discrimination
may be deemed to have taken place since the appraisal of December 6 --
which is the conduct alleged to be discriminatorily motivated -- was
informal and just an expression of opinion. It is argued that such
appraisal was not part of Kleinfieldt's personnel record, and therefore
would have no effect upon hiring, tenure, promotion or other conditions
of employment. This contention is without merit. A performance
appraisal of an employee which is utilized by a supervisor must
necessarily affect the status of such individual. Where it is furnished
to a new supervisor for his guidance and review, one can scarcely
conclude it is of no moment. The appraisal, albeit not part of the
personnel record of Kleinfieldt, is a rating by management of the
employee's performance. It is an existent appraisal of the individual
which may, at any time in the future, be relied upon by a new supervisor
in supporting his evaluation of the employee. The December 6 "Civilian
Performance and Promotion Appraisal" of Kleinfieldt, although intended
as an advisory rating only is on the same official appraisal form as all
others. It recites the period of the appraisal and includes the
signatures of the rating and reviewing officials. Accordingly, I
conclude the December 6 appraisal does bear upon the tenure and
employment of Kleinfieldt.
(3) General Counsel insists that, based on the entire record herein,
it is reasonable to conclude that Kleinfieldt was given a lower Civilian
Performance and Promotion Appraisal on December 6 because she sought the
assistance of the Union and filed a grievance. It is argued that the
reasons advanced by management for the lower appraisal, i.e. lack of
cooperation and inability to get along with supervision, were pretexts.
In support of this contention, General Counsel adverts to the splendid
record established by Kleinfieldt, the awards and ratings accorded her
in the past, and the remarks by Damiano concerning the Union and the
grievance filed by the employee. It is urged that an inference of
discrimination may be properly drawn.
Under Section 7116(a)(2) of the Statute, it is clear that an agency
may not discriminate against an employee for his having engaged in
protected activity. Such protection attaches to the filing of a
grievance under a negotiated collective bargaining agreement. See
Department of Treasury, Internal Revenue Service, Louisville District,
20 FLRA 660. Further, an employee is protected to the extent that he
may not be the victim of discrimination for union activity, which
includes seeking union assistance in regard to his employment. United
States Customs Service, Region IV, Miami, Florida, 8 FLRA 561.
After careful consideration I am persuaded that General Counsel has
not established a prima facie case of discrimination herein. Due note
is taken of the excellent ratings, awards and commendations bestowed
upon Kleinfieldt prior to 1985. Nevertheless, the record reflects that
after the reorganization Kleinfieldt opposed management in respect to
the assignment of her supervisor, and she continued to rebel against the
appointment of Bowers. At the meeting on November 12 Kleinfieldt
insisted that Damiano was her supervisor. Moreover, Kleinfieldt said at
the meeting she would not accept Bowers as a supervisor.
Apparently the reorganization and appointment of Bowers as Branch
Chief resulted in noticeable dissatisfaction and resentment on the part
of Kleinfieldt. Record facts show a certain lack of communication on
her part toward management, and this was imparted to Damiano by Powers
and Scales. While the skills of the said employee may have remained the
same, the lack of harmony between Kleinfieldt and her supervisor was
self-evident, and the friction was a source of irritation at the
worksite. The conduct of Kleinfieldt constituted, or may be
characterized as, insubordination. Her refusal to abide by the
selection of Bowers as her supervisor, together with the breakdown in
communication, could well color the appraisal which was made by Damiano
in December. Although in respect to the performance factors, there was
no lowering of the employee's skill, Damiano testified the lack of
cooperation and friction induced him to lower her ratings to"5" and
consider her as "Fully Satisfactory" rather than "Outstanding". While
other rating officials might not have changed Kleinfieldt's appraisal
based on her conduct, Damiano's rating was a judgment call. Unless
anti-union animus can be shown, or an inference of retaliation is
properly drawn from the filing of a grievance, the record of
Kleinfieldt's behavior during the period preceding the December 6
appraisal does not justify labeling Damiano's judgment as unreasonable
or pretextuous in nature.
To counteract any justification for the December appraisal, and to
support its position that this rating was discriminatorily motivated,
General Counsel relies upon several factors. Apart from the excellence
in Kleinfieldt's past record and the awards given her, attention is
directed to the comments by Damiano re the employee's seeking union
assistance as well as filing a grievance. These factors, together with
the timing thereof and the appraisal itself, are stressed as warranting
an inference of discrimination.
Note is taken that at the November 22 meeting Damiano did reply to
Kleinfieldt's complaints by stating he had been straight forward with
the employee, that she had put things in writing and brought the Union
into the matter. While standing alone and not in context with other
factors these statements might otherwise be deemed indicia of
discriminatory motivation, I am not convinced they justify such an
inference under present circumstances. Following Kleinfieldt's
accusations, these remarks seem to reflect Damiano's exasperation at not
being able to deal satisfactorily with the employee and her complaints.
No evidence exists of hostility to the Union on the part of management,
and I do not conclude that the comment of Damiano, which refers to
Kleinfieldt's bringing the Union into the picture, supports an inference
of anti-union animus. See Community Services Administration, 6 FLRA 616
(where the supervisor remarked that the alleged discriminator "always
runs to the union"). Likewise, I do not view Damiano's statement to
Spaulding that the employee filed a grievance warrants the conclusion
that such conduct motivated the lower appraisal rating of Kleinfieldt.
There is no showing that grievances presented problems in the past or
precipitated resentment and retaliatory action by management. Reference
to Kleinfieldt's grievance does not warrant concluding that a grievant
was likely to suffer as a result thereof.
Thus the record herein supports a basis for Damiano's lowering the
Civilian Performance and Promotion Appraisal of Kleinfieldt. A
determination that such appraisal and new rating was, in truth, founded
on her filing a grievance or enlisting the aid of the Union requires an
inference that the reasons adduced by Damiano were pretextual. In light
of the fact that no evidence was adduced to indicate management's
hostility to the Union or the filing of grievances, I am not prepared to
draw such inference. While it may be argued that a refusal to accept
Bowers as her supervisor and a lack of cooperation does not square with
a lower appraisal of performance factors, such a conclusion calls for
substituting one's judgment for that of the rating official. It might
give rise to suspicion -- but it falls short of requiring the conclusion
that Respondent was discriminatorily motivated in the ratings accorded
Kleinfieldt in view of her conduct beforehand.
Accordingly, I conclude that General Counsel has not established a
prima facie case of discrimination toward Kleinfieldt and that
Respondent did not violate Section 7116(a)(1) and (2) of the Statute as
alleged. It is therefore recommended that the Authority issue the
following:
ORDER
It is hereby Ordered that the Complaint in Case No. 8-CA-60091 be,
and the same hereby is, dismissed.
/s/ William Naimark
Administrative Law Judge
Dated: December 23, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The rating factors are as follows:
1. WORK EFFORT
Exerts effort and shows initiative in starting, carrying out
and completing tasks; spends time effectively performing work.
2. ADAPTABILITY TO WORK
Picks up new ideas and procedures quickly, is easy to instruct;
can adapt to the demands of new situations; understands and
carries out oral or written instructions.
3. PROBLEM SOLVING
Devises effective solutions to problems; or identifies
effective methods and procedures for accomplishing objectives.
4. WORKING RELATIONSHIPS
Sensitive to the behavior of fellow workers, supervisors and
subordinates; maintains effective working relationships with
others.
5. COMMUNICATION
Communicates clearly and effectively, whether orally or in
writing.
6. WORK PRODUCTIVITY
Productive during work time; completes his/her work projects,
duties, and tasks in a timely manner.
7. SELF-SUFFICIENCY
Works independently with little need for additional supervision
or help; follows through well; accomplishes all tasks required
to complete a job on his/her own.
8. SKILL IN WORK
Performs jobs-associated tasks well, whether they require
physical, technical, professional, supervisory or managerial
skills; is considered very skillful on the job.
9. WORK MANAGEMENT
Effectively plans and organizes work; properly follows or
implements management procedures, directives, regulations or
technical orders; ability to direct or evaluate others, or
substitute for absent supervisor.
(2) Since we find that the asserted reason for the Respondent's
action was pretextual, this is not a case where both legitimate and
improper motives are found which would require us to consider whether
the Respondent would have acted as it did even absent the improper
motive. In other words, this is not a "mixed motive" case, subject to
the analysis outlined in Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977). See Internal Revenue Service,
Washington, D.C., 6 FLRA 96 (1981).
(3) In addition to these awards, several other encomiums were
received by Kleinfieldt. She received a Letter of Commendation on
October 18, 1982; a Letter of Appreciation on January 20, 1983 from the
Director of Supply for a presentation made by her; and a Superior
Performance Appraisal from her supervisor on October 1, 1982.
(4) Scales testified he inflated the appraisal a bit because the
employee was a trainee, had a poor trainer, and the work situation
changed between the time she was hired and the date of the rating.
(5) Unless otherwise indicated, all dates hereinafter mentioned occur
in 1985.
(6) While Kleinfieldt denies being told in October that Bowers would
be her supervisor as Chief of this Branch, the testimony given by Bowers
as to the October 16 meeting was unrefuted. Accordingly, I find the
facts as related by Bowers in respect to the said meeting.
(7) The parties are in conflict as to whether Kleinfieldt's leave
was, in fact, authorized by management or whether she took unauthorized
leave. Since the issue of alleged discrimination neither turns on, nor
is affected by, a determination of this conflict, the undersigned makes
no resolution thereof.
(8) The findings in regard to this conversation represents the
credited testimony of Kleinfieldt.
(9) According to her testimony, this was the first time Kleinfieldt
heard that Bowers was to be her supervisor. It may be that Kleinfieldt
was not under the impressiqon beforehand, based on prior conversations
with management, that she was to be supervised by Bowers. The ultimate
conclusions herein do not rest on whether Kleinfieldt understood this
fact in October -- before she went on leave -- or upon her return to
work in November.
(10) While there is little dispute as to the matters discussed in the
presence of Spaulding, the record reflects a conflict in the testimony
as to whether Spaulding did appear at the meeting. I credit Kleinfieldt
in this regard.
(11) No discussiqon ensued re the appraisal. When asked by Damiano
if she had any questions, Kleinfieldt replied she did not.
(12) With respect to the performance elements listed in the
appraisal, Damiano's testimony reflects that her level of performance
remained the same between August and December. However, as indicated,
her work behaviors (Appraisal Factors) were not indicative of an
"Outstanding" rating, which was due to her lack of communication and
cooperation with the staff.
(13) The grievance was denied at the Step 2 level by Logue on
December 19.
(14) While not so expressed, this response was deemed by Respondent
to be a denial of the December 12 grievance.
(15) As particularized by the Complaint, it was alleged that the
disciplinary action involved issuing a lower performance appraisal for
Elsa Kleinfieldt on December 6, for the appraisal period July 1 -
December 6, because she sought the assistance of the Union and filed a
grievance.